In overruling Abood, the nation’s high court said that Illinois’ extraction of agency fees from nonconsenting public-sector employees like Mark Janus violated the First Amendment. In other words, the Court said that the First Amendment protects public employees from being required to support a private group whose views may differ from theirs. Abood, the Court said, “has provedunworkable.”

For lawyers forced to join and to fund a state’s mandatory bar association this is wonderful news. Abood was the linchpin case upon which mandatory membership bars comprehensively ordered their activities. Today’s Janus ruling breaks one leg off the stool mandatory bars plop down on to straddle lawyer First Amendment rights.

Abood and Keller.

In Abood, the Court ruled unanimously that union shop clauses in public sector collective bargaining agreements could not be used to compel nonunion employees to fund the union’s political or ideological activities to which they objected. The Court, however, also held that nonunion public sector employees could be required to fund union activities related to “collective bargaining, contract administration, and grievance adjustment purposes.”

Abood was subsequently used to underpin Keller v. State Bar of California, the U.S. Supreme Court case that said mandatory membership bar associations could use compulsory members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

Nonetheless, ever since Keller was decided, lawyers have objected to the inherent conflict of interest that exists when mandatory bars — in line with the ruling in Abood — are the sole arbiters deciding which of their activities are “germane” to the permissible purposes of lawyer regulation or improving the quality of legal services (chargeable expenditures) and which activities are political or ideological and therefore not germane (non-chargeable expenditures).

In highlighting Abood‘s infirmities, the Court declared “its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision.”

But since member non-transparency is their stock in trade, mandatory bars have historically never bothered with such ‘trifles’ — ignoring altogether the line between chargeable and nonchargeable expenses. ‘Germaneness’ analysis? What’s that?

This is why a good case can be made for the inability and the unwillingness of mandatory bars to determine what are chargeable or nonchargeable expenditures. Lawyers, like public sector employees, have similarly faced what the Court termed “a daunting and expensive task if they wish to challenge union chargeability determinations.”

No more opt-out — affirmative consent required.

Prior case-law required notices with “sufficient information to gauge the propriety of the union’s fee.” The reality, however, has been different. The unions, including AFSCME, have failed to provide sufficient information to permit such a determination. Indeed, the Court Opinion included “some examples regarding the Union respondent’s expenditures.” The Court listed“categories of expenses’ and the amount in each category “saidto be attributable to chargeable and nonchargeable expenses.”

“How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.” at 41.

Forget for now the fox assigning herself to count the chickens in the hen-house. Mandatory bars do like hanging their capes on what they say is their members’ ability to object and to request a refund– albeit after-the-fact — of any expenditures objectors believe are political or ideological. If the objection is successful, objecting members can expect at best a nickel ninety-eight refund for their trouble.

And in even in those jurisdictions where lawyers can opt out of a bar’s self-serving penny-ante lobbying expenditure calculation, it still requires lawyers to affirmatively check a box on the dues invoice to get the measly deduction.

Happily for mandatory bar members everywhere, the Court today, also ruled that taking money from nonconsenting employees for a public-sector union is a First Amendment violation. Employees must choose, the Court said, to support the union before anything is taken from them. “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

And while lawyers and their trade associations are not exactly identical to public employees and their unions, there’s nonetheless a long line of cases, including Keller, that have consistently analogized bar associations to union shops. For this reason, mandatory bars were apprehensive about the demise of Abood. Little wonder that 21 former Presidents of the District of Columbia Bar signed an amicus brief asking the Court to leave Abood“undisturbed.”

The ex-bar presidents claimed, “The Abood/Keller line of cases represents a firmly rooted body of law upon which not only states and unions but also integrated bars, including the D.C. Bar, have long relied in structuring their activities. Overruling Abood would have a profoundly destabilizing impact on bars all over the country.”

All that aside, I can scarcely wait for the reaction of mandatory bars across the nation to Janus, especially in jurisdictions with particularly restive members such as Arizona, Nevada, Washington and Wisconsin.

But expect mandatory bar leaders not to go along quietly or quickly to restructure operations in accord with today’s decision.

Instead, they will pretend it’s business as usual. Abood or not, still others may piously prattle and parse that “Keller-purity” means “Janus-purity,” too.

A “membership requirements” survey emailed to the state’s lawyers last week by the Chief Justice of the Arizona Supreme Court features an unprecedented argument. Acknowledging that “somelawyers argue there should be an exception”to mandatory membership in the State Bar of Arizona, the introduction to the survey asserts “One argument is that some lawyers hold a ‘firm, fixed and sincere ethical, religious or moral objection’ to being required to be a member of the State Bar and should be able to opt out as a non-member attorney (NMA).”¹

As proposed, lawyers opting out of joining the Bar and funding its full freight of regulatory and non-regulatory trade association services would be required to personally swear or affirm in writing to “a firm, fixed, and sincere ethical, religious or moral objection”to Bar membership.

It’s not clear who would determine the adequacy of the affidavits or how often affiants would have to file their objections. California teachers, for example, must annually file an opt-out request to get a 30% refund of their union dues.

More significantly, objectors would be forced to tell their clients of their new status as NMAs. This assuredly implicates unconstitutional compelled speech. It also serves no legitimate government function. And without pinpointing any legitimate purpose, objectors would be issued new Bar cards with brand new bar numbers to identify them as attorneys licensed to practice — but NMAs. Talk about chilling the First Amendment right not to associate.

A lawyer second class.

As a newly created separate and unequal class of lawyers, NMAs would be excluded from voting in Bar elections or from running for its governing board. However, as others have pointed out, disenfranchising NMAs is only appropriate if the State Bar has no formal role in attorney discipline and governance. But that’s not the case here. The Court-empowered Bar will continue holding regulatory and disciplinary sway over both members and non members.

In exchange for giving up the foregoing, it’s estimated NMAs would save a modest $70 to $100 off the current $505 dues. Already one of the highest cost to practice bars in the U.S., Arizona’s dues go up to $520 a year from now.

It’s fair to wonder how this low savings estimate was calculated and whether it was derived from self-interested Bar number-crunchers. By contrast, when in 2013 the Nebraska Supreme Court ordered the Nebraska Bar to charge members only for lawyer regulation — licensing fees went down by two-thirds.

As I have written here before, the Bar always conflates lawyer professionalism, expertise and qualifications with mandatory membership — because it serves their self-interest. Lawyers are admitted and authorized to practice by the state supreme court not because of Bar membership.

Yes or no.

After describing how the proposal would be implemented, the survey asks a yes or no question, “Given this information, do you believe the Arizona Supreme Court should provide a non-member attorney option to attorneys licensed to practice in Arizona?”

And then asks, “If the AZ Supreme Court were to provide a non-member attorney option as described above, would you:

___ Remain a full member of the State Bar

___ Choose to opt out”

Below are the parameters that frame these survey questions. But inasmuch as they amount to poison pills, it’s clear the intent is to not to delineate but to dissuade respondents from opting out.

The State Bar, which gave input on the survey, stands to profit should the results inure to its benefit. However, asking the Bar for input on whether its captive members should opt out is like asking the cat whether to release the mouse.

So notwithstanding the survey’s one-sided argument and suspect constitutionality, the Bar will just the same crow a result that cowed its members from opting out. How many lawyers will find amenable a requirement to out themselves to clients like modern-day Hester Prynnes?

But if there’s ever been a better case for a voluntary bar than the one presented by this unworkable scheme — I can’t think of one.

▪“Would be required to file an affidavit with the State Bar indicating they favor a firm, fixed and sincere ethical, religious or moral objection to being required to be a member of the State Bar.

▪ “Would be required to notify your clients that you are no longer a member of the State Bar, but are licensed to practice in Arizona.

▪”Would have to personally file the affidavit. The head of a firm or office could not opt out for all attorneys at the firm or office.

▪ “Would receive a separate law license number and their current bar number would be deactivated.

▪ “Would not be able to join a State Bar section.

▪ “Would be charged a higher non-member registration fee if the NMA wants to attend a State Bar sponsored CLE program.

▪ “Could not vote in State Bar elections, nor could they run for the Board of Governors.

▪ “Would not be eligible for State Bar discretionary services, e.g., the Arizona Attorney, e-Legal newsletters, Law Office Management assistance, use of FastCase, State Bar legal publications.

▪ “Would pay a mandatory licensing fee but would not pay for State Bar non-regulatory services. The Court estimates it would be a 14% to 20% reduction in the fee paid for only being licensed to practice. For a regular active Bar membership, the reduction would be $70 to $100.”

_________________________________________________________________

¹Never having heard of any lawyer making such a peculiar argument, what first occurred to me on seeing the proposed NMA acronym was the Compton rap group N.W.A.

“I don’t want to belong to any club that would have me as a member.” – Groucho Marx

Earlier this month, a white Austin lawyer filed a federal discrimination lawsuitagainst members of the Texas State Bar’s Board of Directors claiming the Bar is “violating the Equal Protection Clause by maintaining a race- and sex-based quota scheme on its Board of Directors.” Solo family law attorney Greg Gegenheimer alleged he’s being unconstitutionally discriminated against because the Texas Bar won’t consider him for one of the four board seats statutorily designated for minority members.

This is the latest of the Texas Bar’s constitutional kerfuffles. At the end of last year, Texas Governor Greg Abbott accused the Bar of religious discrimination for refusing to accredit a continuing legal education (CLE) class on Christian ethical perspectives in the legal profession sponsored by San Antonio’s St. Mary’s University School of Law.

As for Gegenheimer’s suit, Texas law states “four minority member directors appointed by the President of the State Bar” must serve on the Bar’s board. “Minority member” means a state bar member who is “female, African-American, Hispanic-American, Native American, or Asian-American.” Gegenheimer’s complaint alleges the Bar is prohibiting white men from being nominated or even considered for the open minority-member positions posted for the board.

Seriously? Why would any lawyer pick a fight to sit on any compulsory membership state bar’s governing board — unless it was to disrupt the collection of sycophants, suck-ups and social climbers that calcify there?

Legal elites detest dissenters — but if Gegenheimer wants to sit on the board as a disruptive force — well more power to him.

The preferable constitutional battle.

But a squabble over bar quotas is merely an undercard. The main event, the better bout is defending the First Amendment free speech and free association rights of Texas lawyers by eradicating compulsory membership in the Texas Bar. Now that’s the fight worth having.

And as for filling its minority-member vacancies, the Texas Bar most likely can’t persuasively argue a sufficient constitutional interest for imposing a sex and race based quota for appointments to its board. (Not to say there hasn’t been a basis for assuring some semblance of minority representation in Texas given the Lone Star State’s rather ingloriouspast and recenthistory).

Rather than contesting race and sex based numerical requirements, Texas lawyers should be revisiting the still dubious foundations of coercive bar association membership. Granted, the only compelling state interest the U.S. Supreme Court has found to justify it is improving the practice of law through the regulation of attorneys. Yet 18 states—Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Tennessee, and Vermont—have already found ways to regulate attorneys without compelling membership. To say that in Texas and in 31 other jurisdictions that this interest cannot be achieved through less restrictive means, simply ignores reality. Mandating membership in any state bar association crosses “the limit of what the First Amendment can tolerate”1 when there are less restrictive means available.

Meantime, you can read Gegenheimer’s complaint here. His suit is being backed by the Project on Fair Representation, an organization which calls itself “a public interest organization dedicated to the promotion of equal opportunity and racial harmony.” It goes on to add, “The Project works to advance race-neutral principles in the areas education, public contracting, public employment, and voting.”

In actuality, I seriously doubt Gegenheimer wants to serve as one of the board’s minority-member designees. After obtaining a declaratory judgment that the minority-member law violates the Equal Protection Clause, what he really wants is a preliminary and a permanent injunction preventing the Bar from enforcing that law.

Yet the broader view is for Texas lawyers and other lawyers forced to join bar associations as preconditions to practice to instead work to protect their fundamental rights of free speech and freedom from coerced association that forces them to pay compulsory dues whether or not they subscribe to the viewpoints, activities and agendas of that association.

After kicking the can around for 3 years, the State Bar of Arizona finally submitted a petition to the state supreme court that no one besides Bar insiders was asking for.

The Bar wants to amendthe Oath of Admission to the Bar and the Lawyer’s Creed of Professionalism. The petition has been circulated for public comments due back October 28, 2016.

Since rule changes occur mostly under-the-radar without fanfare, revisions to the oath and creed will probably go into effect with few discouraging words.

Why the Arizona Bar felt the need to amend the oath and creed is a good question. The stated reason was a desire “to harmonize” the oath with the Arizona Loyalty Oath of Office and with a supreme court rule. As for the creed, the Bar said the proposed changes “reflect additional areas of emphasis as the result of practical experience since the creed was originally adopted.”

For the record, Arizona’s lawyer creed was adopted May 19, 1989. It’s already been amended twice, including September 19, 2003 and May 20, 2005. This latest petition will make 3 amendments.

I don’t know how many otherstates have enacted let alone so frequently amended their own lawyer creeds meant ostensibly to legislate professionalism and civility for a stubbornly adversarial profession.

Over 30 years ago such creeds became all the rage. State bars around the country imposed these creeds in a daunting attempt to stem the public’s falling respect for lawyers. You tell me if it’s worked. A 2014 Princeton University study found lawyers continue to rank below nearly every other profession and occupation in trustworthiness.

But whether something works or not is of little import to bureaucrats invested in telling the rest of us how to act and think. Rules and systems change. Initiatives are implemented. Programs are rolled out. But little is done after to quantifiably measure or objectively evaluate whether goals are met or programs succeed. But if feel-good bromides be the music of success, then play on. Nothing tops the self-congratulation of non-achievement.

And something else you can always count on is for bureaucracies to overreach their authority. So ‘aye, there’s the rub’ with this petition. It tinkers, tampers and trespasses on public interests and lawyer rights.

I won’t get into all the objections but highlight the principal ones as follows:

One proposed change to the oath adds “and laws” to “I, (state your name), do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona.”

Article 6 Section 26 – Oath of officeof the Arizona Constitution states judges must support the Constitution of the United States and of Arizona — but does not mention “laws.” Arguably, this is because judges sometimes overturn laws and therefore ought not be so proscribed by an Oath of Office. Relatedly, lawyers sometimes challenge certain laws asfacially unconstitutional or unconstitutional as-applied. Indeed, in those circumstances lawyers argue such unconstitutional laws should not be obeyed. Consequently, lawyers, too, should not be required to swear an oath to “laws” they don’t believe are constitutional.

The petition also exchanges “unprofessional” conduct for “offensive”conduct in the creed. The proposed new language goes beyond what the court already defines as “unprofessional” conduct inER 8.4. Misconduct.

This hints at a hidden agenda. It morphs into a brand new mandate ER 8.4’s ethical proscriptions against bias and prejudice that are actually “prejudicial to the administration of justice” and that adversely affect fitness to practice or seriously interfere with the proper and efficient operation of the judicial system. The new requirement instead goes beyond settled rule intent and interpretation. In truth, it’s an entirely new departure intruding on lawyers’ professional autonomy, freedom of speech, and freedom of association. As a consequence, it subjects lawyers to discipline for engaging in conduct that neither adversely affects the attorney’s fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system.

Dredd Scott via Wikipedia Commons, public domain

And last, the addition of “and respectful to” to no. 11 of the creed, “I will at all times be candid with, and respectful to, the tribunal” seems to place respect to the tribunal over duty to the client or justice. As a colleague recently wrote to me after citing instances where tribunals were sorely wrong from Buck v. Bellto Dred Scott v. Sandford to Plessy v. Ferguson to Korematsu v. United States, “Lawyers have to not be afraid to criticize the government, judges and prosecutors when they are abusing their powers as well. We cannot fear discipline because we spoke truth to power.”

Absent a prejudicial effect on the administration of justice, you expect lawyers to retain free speech rights even when engaging in professional activities and especially life activities outside the practice of law. But efforts to broaden and censure lawyer speech and conduct when the prohibited speech and conduct do not have a prejudicial effect on the administration of justice threaten those rights. They raise serious First Amendment issues subject to constitutional challenge.

Not to mention that the words “and respectful to”are also void for vagueness since they are undefined. Due process requires that an enactment is void for vagueness if what it prohibits is not clearly defined. Worse yet, these words would operate to chill the exercise of First Amendment freedoms by preempting and even muzzling speech and conduct lest boundaries not clearly marked are crossed.

And even more worrisome is the probability that arbitrary and discriminatory enforcement will follow without explicit standards for those who apply them. As it is, lawyers here already opine the Arizona Bar enforces its ethical rules on an ad hoc and subjective basis. Vague terms like these only serve to compound these opinions. And they heighten attendant apprehensions of continued arbitrary and discriminatory application.

Ogden’s troubles, however, were bigger than just the possibility that as a politically active lawyer with an unblemished 27-year legal career, he might suffer potentially career-destroying sanctions. No, Ogden’s case was really about another attempt by attorney disciplinary authorities to further muzzle attorney free speech.

It was about how much more an ethical rule can be broadened to spank lawyers for their opinions about judges under Ethical Rule 8.2, which says, in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

Wikimedia Commons/Public Domain

And it was also about a lawyer disciplinary commission with the unbridled temerity to hammer and tong a lawyer with the nerve to persistently criticize it.

The Court decides.

This past Monday the Indiana Supreme Court handed down its decision In the Matter of Paul K. Ogden. And while the vocal Hoosier gadfly ended up getting disciplined, it was still a good outcome for Ogden.

The case against him was originally brought in March 2013 because of comments he made in private correspondence about Judge David H. Coleman, a special judge appointed in an unsupervised estate case where Ogden was representing one of the interested parties.

As to the First Count of the Charge, in the words of the Court, Ogden’s “repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for (these) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a)in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case.”

As to the remaining Second Count concerning alleged ex-parte communications to Marion County judges to follow recently outlined forfeiture law, the Court ruled the disciplinary commission had not met its burden that Ogden’s letters to the judges were “prejudicial to the administration of justice.”

The Court instead found professional misconduct only with respect to Ogden’s statements about Judge Coleman. And so it ordered a 30-day suspension starting August 5, 2014 and assuming he keeps his nose clean, at its conclusion, the Court approved automatic reinstatement.

Speaking objectively — despite the sanction, I think it’s a win for Ogden. The Court unanimously found misconduct only concerning the First Count. It imposed only a 30-day suspension with automatic reinstatement — instead of the one-year suspension without automatic readmission that the Commission wanted.

Wikimedia Commons/Luis Ricardo/GNU Free Documentation License.

Vulnerable attorneys.

A few days after, at Disbarring the Critics, Ogden also understandably cast the outcome in a positive light. The perils he’d faced had been daunting.

But all the same, Ogden was disappointed “the Court failed to distinguish between public and private communications, thereby leaving attorneys vulnerable to having their private emails and conversations scoured for Rule 8.2 violations for judicial criticism.”

On a more hopeful note in his post, “The Indiana Supreme Court Hands Down Decision,”he added: “Attorneys from across the country are wanting an attorney free speech case to go before the United States Supreme Court to curtail states use of disciplinary rules to target attorney speech critical of judges. I think it’s inevitable that’s going to happen as the U.S. Supreme Court seems to have a keen interest in free speech cases and there seems to be no support among conservatives or liberals on the Court for the types of professional sanctions states are imposing on attorneys for judicial criticism.”

Obstreperous meets obdurate.

Ogden also remains convinced the Indiana Disciplinary Commission overcharged and overprosecuted him for no other reason than his unrelenting criticism of its doings. Optimistically, then, he hopes his case will be “a catalyst”for investigating the Commission’s conduct “and for much-needed reform to the attorney disciplinary process.”

While I wish him well, I don’t know whether such optimism is realistic. The forces arrayed against him are formidable. The Commission is an agency and arm of the Indiana Supreme Court.

Case in point, despite his well-founded longstanding complaints about the Commission’s conduct, the Court adopted its agency’s view that Ogden had been “obstreperous.” Obstreperous is a $10 word meaning stubbornly resistant to control as in “unmanageable.”

Using my own $9.99 word, if Ogden’s unruly then I think the Commission has been obdurate meaning stubbornly resistant to change. But operating apparently without meaningful oversight or transparency, why should it conduct itself any differently?

The good news is that unlike the Black Friday shoppers at that Porter Ranch, CA Wal-Mart, I didn’t get pepper sprayed picking up a new Kindle yesterday afternoon. It must be a different kind of customer that shops for Kindles than the stampeding elbow-throwers who use Pepper spray to clear a path to Walmart specials on X-box video games.

The end of tactual, tangible text?

Despite their continued popularity, I never thought I’d ever get an e-book reader. It’s not because I’m overly suspicious about my privacy like Philadelphia lawyer Anthony Mirabile who wants nothing to do with “Big Brother” or with “elites” dictating consumer choices.

Mirabile argues he’ll shun the “cyber-gatekeeper” by “bitterly clinging to my books,” which is what he wrote in an August 11, 2010 letter to the Wall Street Journal. He was reacting to a Journal Op-Ed prognosticating the end of bookstores thanks to online book communities and e-book readers. See Letters to the Editor: A Panegyric on the Need for Books – WSJ.com

Now, I don’t disregard Mirabile’s worries about“Who Wants To Know What You’re Reading?” But it’s not as though “Big Brother” can’t already try to get your book purchase records from so-called ‘bricks and mortar’ bookstores.

No, my disinclination against e-book readers was more prosaic. It was grounded instead in tactile sensations and guilty reproaches from stacks of unread books atop my nightstand.

Having just barely finished charging my Kindle earlier today, it’s way too early to tell whether or not I will ever completely give up the touch of 50# book text paper stock or the heft of physically holding a book such as my most recent pre-Kindle purchase, the 729-page monumental one-volume “Inferno: The World at War, 1939-1945,” by Max Hastings. A hardcover tome like that practically shouts “serious reader.”

Authoritarianism beyond books.

But while some worry about authoritarian “Big Brother” and the privacy costs of digital books, there’s much more to be concerned about when government power is abused by police who pepper spray peaceably assembling citizens.

I don’t know what it is this year. But pepper spray use seems de rigueur this holiday season – – – whether by a knuckle-headed shopper or by overweening state control.

“Don’t mace [or pepper spray] me, bro.” Like mace, which is aerosol sprayed tear gas, “Oleoresin Capsicum” or pepper spray is also a lachrymatory agent. You don’t want to be doused by either.

The UC Davis Occupy student protestors were docile. Nevertheless, I was reminded of Andrew Meyer who in 2007 as a University of Florida undergrad was tased by campus cops for alleged unruliness at a John Kerry speech.

But fortunately for both sets of Free Speech practitioners, thanks to the upside of the cyber-world we live in, when the state overreaches, “The whole world is watching.”